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Malinauskas v. Public Service Interstate Transportation Co.

Decided: January 22, 1951.

ANNA MALINAUSKAS AND JOSEPH MALINAUSKAS, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY AND WILLIAM A. SLIMM, SR., DEFENDANTS-RESPONDENTS, AND FRANK J. MARSERO, DEFENDANT



On appeal by certification to the Superior Court, Appellate Division, whose opinion is reported in 8 N.J. Super. 268, 74 A.2d 328.

For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Ackerson, J.

Ackerson

We are concerned here with two actions in tort arising from a collision between a bus of the Public Service Interstate Transportation Company (hereinafter referred to as "Public Service"), driven by its employee, William A. Slimm, Sr., in which Anna Malinauskas was a passenger and an automobile owned and operated by Frank J. Marsero in which his wife Dorothy was a passenger. For the injuries and losses resulting from this occurrence, Anna Malinauskas and her husband Joseph brought an action in the Superior Court, Law Division, against Public Service, its driver Slimm, and Frank J. Marsero. An action was also brought in the same court by Marsero and his wife against the Public Service.

Since the two actions arose out of the same occurrence and involved the same issues of fact and law, they were consolidated for the purpose of trial. At the conclusion thereof, the jury returned a verdict which was announced by the forelady as follows: "We, the jury, find Public Service Interstate Transportation Company and the driver Mr. Slimm guilty of negligence and award the sums of: Mr. Malinauskas, $1,500; Mrs. Malinauskas, $6,000; Mr. Marsero, $750; and Mrs. Marsero, $1,000." The clerk repeated the verdicts and then asked: "Is that a unanimous verdict?" The forelady replied: "No." The jury was then polled and it was apparent therefrom that they were unanimous in finding Public Service and its driver guilty of negligence but four of them considered that Frank J. Marsero also was guilty of negligence.

The trial judge thereupon directed the recording of the verdict as announced in favor of Anna Malinauskas, Joseph Malinauskas and Dorothy Marsero and then instructed the jury that there had to be at least ten jurors (L. 1948, ch. 120, ยง 1, p. 831; N.J.S.A. 2:27-233.1) who found that Frank J. Marsero was not guilty of negligence before a verdict in his favor could be recorded, and directed them to "* * * retire to consider further the cause of action of Mr. Marsero v. Public Service."

The jury again retired and at this point counsel for Public Service and Slimm took an exception to the entry of the judgment

in favor of Mr. and Mrs. Malinauskas on the sole ground that "* * * if the jury find on their return that Mr. Marsero is guilty of negligence they should also be given the opportunity of assessing damages against that party."

When the jury again returned they reported by a ten to two vote the following verdict: "We find the Public Service Transportation and Mr. Slimm guilty of negligence and award the sum of $750 to Mr. Marsero." The clerk of the court then repeated all of the verdicts in full as follows:

"Members of the jury harken to your verdict, as the Court has ordered it recorded: You find in favor of plaintiff Anna Malinauskas, $6,000.00, and for plaintiff Joseph Malinauskas, $1,500.00, and assess said sums against defendant, Public Service Interstate Transportation Company and defendant William A. Slimm, Sr. You find in favor of the plaintiff, Dorothy Marsero, in the sum of $1,000.00, and for the plaintiff, Frank Marsero, in the sum of $750.00, and assess those sums against the defendant, Public Service Interstate Transportation Company and defendant William A. Slimm, Sr., and the latter verdict is 10 for and 2 against."

There was no objection to the final verdicts as thus repeated by the clerk and they were in fact the only verdicts actually recorded and incorporated in the resulting judgments.

Public Service and Slimm then appealed both cases to the Appellate Division, which affirmed the judgment recovered against them by Frank and Dorothy Marsero but reversed that obtained by Joseph and Anna Malinauskas on the ground presently to be considered. It is the latter determination which is now before us for review pursuant to certification granted on the application of the last named plaintiffs. The bus company and its driver have not sought certification of the judgment in favor of Mr. and Mrs. Marsero.

The basis for the reversal of the judgment in favor of the plaintiffs Mr. and Mrs. Malinauskas is best expressed by the ...


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